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Thursday, January 21, 2016

Is DAPA about "Negative" Refusal to Deport? Or "Affirmative" grant of benefits?

Deep at the heart of Judge Jerre Smith’s opinion for the Fifth Circuit in Texas v. United States is an apparently contradictory interpretation of two different parts of the APA that brings joy to my student-confusing, puzzle-loving, Leg-Reg teaching side but leaves me scratching my head on how Judge Smith got the Fifth Circuit to go along.

On one hand, Part V(A)(1) of Judge Smith’s opinion finds that DAPA is reviewable because it is not merely an exercise of prosecutorial discretion akin to the FDA’s decision not to bring an action against drug makers in Heckler v. Chaney. Instead, DAPA insures that unlawfully present persons will become eligible to receive “benefits” like Social Security, Unemployment Insurance, and Texas drivers’ licenses. Because DAPA “would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens,” it is, according to Judge Smith, “much more than nonenforcement” (page 35). Such an eligibility policy, unlike a bare decision not to prosecute, can, according to Judge Smith, be tested against statutory standards and so is reviewable under APA section 701.

But if DAPA s really a policy about payment of, or eligibility for, benefits, then should it not be exempt from notice-and-comment rule-making under APA section 553(a)(2), because it is “a matter relating to . . . public property, loans, grants,benefits, or contracts”? No, Judge Smith reasons in Part VI(C) of his opinion: “DAPA does not ‘clearly and directly’ relate to public benefits as that term is used in § 553(a)(2).” Why? Because the “USCIS—the agency tasked with evaluating DAPA applications—is not an agency managing benefit programs” such that “[p]ersons who meet the DAPA criteria do not directly receive the kind of public benefit that has been recognized, or was likely to have been included, under this exception” (page 53). It seems that eligibility to receive various benefits is merely collateral consequence of a decision not to prosecute, not a “direct” decision about benefits themselves.

So which is it? Is DAPA an “affirmative” rule defining eligibility for benefits? Then why is DAPA not a “matter relating to . . . public property, loans, grants,benefits, or contracts”? If HHS were defining eligibility of unlawfully present alien's to receive, say, TANF benefits, they would not have to put the question through N&P rule-making, right? Or is such eligibility merely an incidental byproduct of an otherwise unreviewable “negative” exercise of prosecutorial discretion by DHS? Then why is the decision about DAPA not committed to agency discretion and, therefore, unreviewable under APA section 701? After all, if a U.S. Attorney adopted a non-prosecution policy on, say, sale of medical marijuana, we would not say that such policy’s indirect effects on the seller’s power to get the benefits of, say, state property law (because the marijuana proceeds would not be forfeit) invited judicial review review of the exercise of prosecutorial discretion.

Can someone else find a space between the two lemma's above? I admit that I might be blinded by my libertarian support for DAPA’s policy merits to see the legal merits of Judge Smith’s argument as clearly as they deserve.

Posted by Rick Hills on January 21, 2016 at 05:08 PM | Permalink


One line in that last post got garbled -- it should be "The government has not, thus far, argued that that rule (deferred aliens can obtain work authorization, which in turn makes it lawful to hire them) did not require notice and comment; instead, it argues that "once is enough" (Petition at 32).

Posted by: Marty Lederman | Jan 23, 2016 6:32:56 AM

Good questions, Rick.

To start, one small but important point: The President's (or, more to the point, Jeh Johnson's) prosecutorial discretion is not "Article II-protected"--Congress has the final say as to the scope of that discretion.

Now, as to the substance of your inquiry:

Let's start as if there were no IRCA ban on employers hiring "unauthorized" aliens.

In my view, you're absolutely correct that the deferral of removal in that case would be an unreviewable exercise of discretion -- Heckler v. Cheney. And in that case, as I understand it, the "work authorization" that can come with such deferral is simply DHS telling the alien "Even if you work, we do not plan to remove you, for the time being." Still not reviewable. (Contrast a DAPA alien of means who cannot demonstrate a need for a paycheck -- that alien gets deferral but not work authorization, i.e., not working is a condition of deferral.)

Now, the tricky part is that such "work authorization" also means that the alien in question *is not subject to the employment ban in IRCA* (which is a duty imposed on employers, not aliens). This is not simply a case where the agency tells the employer "Don't worry; we don't plan to prosecute you." It means that the employer is not violating the law in the first instance, and thus has no legal duty to refrain from hiring that alien. A "we're going to refrain from prosecuting" letter would not immunize the employer from prosecution if the Secretary or AG changed his mind (e.g., Colorado marijuana users would have no defense if DOJ turned around tomorrow and started prosecuting them for their past possession); but work authorization does establish such immunity, of sorts, because it changes the legal status of the hire from unlawful to lawful.

I do not think that granting work authorization to a particular DAPA alien requires N&C, even though it has this ancillary effect of altering the legality of the hire -- that would be absurd. Such an individual determination is not a rule at all. But the background rule that makes such authorization possible -- the rule that "deferred action" aliens *are eligible to apply for work authorization* -- is, well, a "rule," by virtue of the ancillary legal impact of such authorizations under IRCA. I think it almost certainly *does* require N&C. And that's what it got, many times over, in the 1980's, including after IRCA was enacted. See 52 FR 2115 (Jan. 20, 1987); 52 FR 8762 (March 19, 1987); 52 FR 16216 (May 1, 1987) (final rule, after more than 4000 comments). The government has not, thus far, argued that that rule (deferred aliens can obtain work authorization, which in turn makes it lawful to hire them) did not require N instead, it argues that "once is enough" (Petition at 32).

Does this make sense?

P.S. As for the FinCen guidance, I'm not really familiar with the details; but from the face of it (https://www.fincen.gov/statutes_regs/guidance/pdf/FIN-2014-G001.pdf), it doesn't appear to immunize banks from any legal obligations, or even to suggest nonprosecution of some category of violations. Thus I'm not sure of its relevance here.

Posted by: Marty Lederman | Jan 23, 2016 6:31:35 AM

Marty writes: "As to work authorization, it's not simply a matter of forbearing prosecution of the employers who hire the aliens. If the Secretary "authorizes" an alien to work, that renders it *lawful* for an employer to hire that alien."

I guess I am still unclear as to why IRCA's definition of "unauthorized alien" transforms the DHS's issuing of a work authorization into something other than "inaction" under Heckler v. Chaney. Agreeing with everything that Will and Marty say, none of that seems especially relevant to the question of whether or not it constitutes a legitimate exercise of prosecutorial discretion to forbear from prosecuting businesses that hire employees without a valid I-9.

Let me make an analogy to help explain my confusion. The Department of Treasury's FinCen and DOJ have jointly issued a guidance authorizing banks to accept deposits from marijuana-related businesses. Suppose that such a guidance constitutes a legitimate exercise of prosecutorial discretion. (Senator Charles Grassley has denounced the guidance as a violation of the "Take Care" clause, but few others are making a similar complaint). Does the status of the FinCEN guidance as legit prosecutorial discretion under Heckler v. Chaney suddenly change if there were, in the federal money laundering laws, a provision stating that "deposits deemed to be lawfully present In a bank's vaults by this chapter or the Secretary of the Treasury do not constitute 'money laundering'"?

Such a provision would certainly give additional security to banks -- security that their accepting deposits from marijuana-related businesses with the imprimatur of FinCEN would not only be safe from federal prosecutions by a particular Administration but also be "lawful" under the statute itself -- that is, in Legal Realist terms, safe for all time, regardless of who occupied the White House. And I suppose that such a statute might constitute an ADDITIONAL basis for arguing that the Secretary had express statutory authorization to issue the guidance.

But your point about IRCA seems more or less irrelevant to my Heckler v. Chaney question of whether or not the guidance is ALSO "inaction" within the President's Article II-protected prosecutorial discretion.

Sorry for being a slowpoke on this question: I may have missed your point about IRCA's relevance to my own query about the "affirmative"/"negative" distinction in the main post. Feel free to spell it out patiently or otherwise to me, offline or online. Or not: Life is short, and I am sure that you have better things to do than help me revise my memo for my Leg-Reg students on prosecutorial discretion and the Take Care clause. (That crowd-sourcing exercise is the real function of my post, just FYI).

Posted by: Rick Hills | Jan 23, 2016 5:38:17 AM

Thanks, Will. The government's position has been that 1324a(h)(3) confirmed and ratified a preexisting authority that was being exercised to grant work authorization. (My very tentative understanding is that pre-IRCA, such authorizations did not have much effect vis-a-vis federal law, but was very valuable to employers for various reasons.) The importance of it, though, is that in the same statute, IRCA, Congress for the first time imposed an actual prohibition on employing "unauthorized" aliens, such that the Secretary's "authorization" then served to effectively allow an employer to hire that alien, notwithstanding the general bar on such employment.

Posted by: Marty Lederman | Jan 22, 2016 1:31:28 PM

I know Marty knows this, but for others reading this thread, I'm just popping in to note that one of the key questions in the case is how to read 1324a(h)(3), which as Marty says, defines “unauthorized alien” to exclude those “authorized to be . . . employed by this chapter or by the Attorney General.” Id. § 1324a(h)(3).

Is that section itself a *grant* of work-authorizing authority to the Attorney General, or simply a *cross-reference* to other provisions that Congress might or might not enact in each case?

The answer to that question will help us understand whether it's right that "the Attorney General--now the Secretary of DHS--may 'authorize' non-LPR-admitted aliens to be eligible for employment," and if so, which ones and subject to what intelligible principle.

Posted by: William Baude | Jan 22, 2016 11:50:26 AM

Rick: It's about work authorization--the other benefits follow from lawful employment. As to work authorization, it's not simply a matter of forbearing prosecution of the employers who hire the aliens. If the Secretary "authorizes" an alien to work, that renders it *lawful* for an employer to hire that alien. IRCA-- 8 U.S.C. § 1324a(a), generally makes it unlawful to hire or employ an “unauthorized alien”; and that statute in turn defines “unauthorized alien” to mean an alien who is neither lawfully admitted for permanent residence nor “authorized to be . . . employed by this chapter or by the Attorney General.” Id. § 1324a(h)(3). IRCA thus expressly provides that the Attorney General--now the Secretary of DHS--may "authorize[]" non-LPR-admitted aliens to be eligible for employment; and when he does so, such Secretary-designated aliens are, quite literally by definition, not "unauthorized aliens" who are subject to IRCA's hiring prohibition.

That's why the government is not arguing that the work authorization reg is exempt from N&C--instead, it argues that N&C was *satisfied.*

Posted by: Marty Lederman | Jan 21, 2016 10:58:46 PM

Hi Marty! Yes, I agree that work authorization itself does not look like the sort of "proprietary" activity to which section 553(a)(2) seems to allude. (I tell my students that one can understand section 553(a)(2) as giving federal agencies some of the flexibility in disposing of their money and property that private firms enjoy). But I understood Judge Smith to be arguing that the benefit conferred was Social Security, unemployment insurance, and other monetary expenditures. He emphasizes these, at least, in his opinion. Much of the opinion's rhetoric, indeed, seems to mimic popular discourse about unlawfully present aliens as moochers on the public fisc.

If these are the affirmative benefits that Judge Smith has in mind, then section 553(a0(2) seems to kick in. If instead the benefit at stake is simply DHS's forbearing to prosecute employers who hire an alien without an I-9 form, then that forbearance looks like classic prosecutorial inaction of the Heckler v. Chaney variety. I imagine that ICE's decisions to stage raids at workplaces has always been a matter of resource deployment and prosecutorial discretion beyond judicial review. That's why I believe that Judge Smith emphasizes benefits that are the product of a governmentally funded program, not merely the benefits of not having to endure an ICE raid. The former benefits, however, are precisely the sort of benefits that need not be subject to N&C rule-making, right? .

Posted by: Rick Hills | Jan 21, 2016 10:34:15 PM

"I admit that I might be blinded by my libertarian support for DAPA’s policy merits to see the legal merits of Judge Smith’s argument as clearly as they deserve."

I think not, but hey, you seem to be trying to find something. You seem to have did your due diligence. Don't worry too much.

Posted by: Joe | Jan 21, 2016 10:11:52 PM

Rick: Conferral of some of the benefits incidental to employment, such as social security, probably are subject to the 553(a)(2) exception. See p.31 of the petition (http://www.scotusblog.com/wp-content/uploads/2015/11/us-v-texas-petition.pdf). But the principal thing at stake is the "work authorization" itself, which is, in effect, a green light to employers to hire the DAPA aliens. And I don't believe that would constitute a "benefit" under 553(a)(2), which is why the government doesn't argue that. Their APA argument w/r/t work authorization is, instead (see pp. 31-32 of the petition), that the rule in question -- establishing that deferred-action aliens are eligible for employment if they satisfy the need-based requirement -- *was* promulgated pursuant to N&C, several times over, in the Reagan Administration. (See the back end of this post: http://balkin.blogspot.com/2015/02/judge-hanens-and-michael-mcconnells.html; and this post: http://balkin.blogspot.com/2015/11/texas-v-united-states-fifth-circuit.html.)

Posted by: Marty Lederman | Jan 21, 2016 9:56:51 PM

I don't know the way out of that puzzle, but I wonder whether the Court added the "take care" clause issue to the case because of that. Seeing that there were 4 votes to grant cert (and probably reverse), maybe the justices who would have otherwise opposed cert added the "take care" issue as a way out of APA puzzle. I'm not sure how issues get added at the cert stage, but it strikes me as a possibility.

Posted by: Jack Preis | Jan 21, 2016 8:31:13 PM

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